The irony of the genocide case against Israel

The irony of the case of genocidal acts and intent brought against Israel by South Africa before the International Court of Justice (ICJ) is obvious. The Genocide Convention was the first human rights treaty adopted by the General Assembly of the United Nations in 1948 and signified the international community’s commitment to ‘never again’ allow the atrocities committed during the Second World War, particularly with reference to the Holocaust against the Jews by Nazi Germany. Israel is one among 153 countries that have signed the Convention and is a party to it. Article one of the Convention enjoins upon a signatory party not to commit genocide and confers the obligation to prevent and punish genocide under Article ll. The Convention defines genocide as any of five ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. These five acts include killing members of the group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births and forcibly transferring children out of the group. Victims are targeted because of their perceived or real membership of a group and not randomly. The Convention further criminalises ‘complicity, attempt, or incitement of its commitment’.
On December 29, 2023 South Africa formally accused Israel of violating Article-I of the Genocide Convention (committing genocide), filing a case before the top United Nations (UN) court, the International Court of Justice (ICG) due to Israel’s military actions in Gaza strip. In addition to starting the litigation process, South Africa also asked the ICJ to demand that Israel cease their military operations in the Gaza strip as a provisional measure. South Africa’s submission places the charges in what it considers as the ‘broader context of Israel’s conduct towards the Palestinians’, including what it describes as a 75- year apartheid, 56 -year belligerent occupation and 16- year blockade of the strip.
The very fact of a case of genocide brought against the state of Israel is nothing short of an irony of history as the Convention on Genocide was mooted in the aftermath of atrocities and genocidal acts against Jews during Second World War. That the heirs of the victims of Holocaust in Israel should be accused of the same crime as their forefathers were subjected to and have to stand in the dock in a court of law to prove their innocence is a poignant moment in history whose irony cannot be missed. Irrespective of whatever is the outcome of the South Africa vs Israel case, Israel through its appearance in the Court has lost the moral standing that it was supposed to enjoy as the nation that is heir to the tragedy of the greatest act of genocide in history, the Holocaust. All its vaunted claims as the shining example of democracy, practitioner of rule of law and champion of Judeo-Christian civilisational values now lie trampled in the dust, not least because of their own cold-blooded acts. There have been many instances in its history as a nation state when Israel has ridden roughshod over human rights in the land they illegally and forcibly occupy but their rulers have never been called out to account for their acts by any international body. They seemed to inherit the immunity as the heirs of a victim race and have enjoyed the unwavering support and protection of Western countries, especially America. But not this time, when their violation of human rights has reached the nadir of genocidal acts and has been live streamed in TV channels and online platforms in real time. No number of targeted killings of media personnel covering the carnage in Gaza can hide their crimes of ethnic cleansing that is going on for over 100 days. The war in Ukraine, though longer than the one in Gaza, pales into insignificance in terms of continuous killings, maiming and destruction of infrastructures for living. History has only a few textbook cases of ethnic cleansing, all recorded in written documents and preserved as old sepia-coloured photographs. But the genocide in Gaza is being shown in Al Jazeera TV channel almost non-stop for its entire duration over 100 days and the coverage is continuing. Documents can be doctored and photographs manipulated but not TV coverage which is the naked truth that spurs the media on. South Africa in presenting their case on the commitment of genocide by Israel could simply base the argument on a collage of moving pictures with sound bites and that in itself would have been a formidable body of evidence. If the judges are not blind they can see for themselves what is happening in a tiny strip of land where one of history’s most brutal and barbaric mayhem is going on in the name of self-defence. But court being a forum for arguments on point of law has to hear both sides before coming to a conclusion. Let us recapitulate what were the briefs presented by the two sides, plaintiff South Africa and respondent Israel on 11 and 12 December, respectively.
South African arguements: The South African team leader narrated the harrowing plight of the Palestinians in Gaza who are trapped under siege, battered by continuous air strikes and faced with a deadly Israeli ground invasion. Adila Hassim, one of the lawyers representing South Africa, confined her argument to five acts that amounted to commitment of genocide by Israel. The first genocidal act, according to her, is the mass killings of Palestinians in Gaza. Illustrating with photos of mass graves she said Israel has used 2000 pounds bombs in parts of Gaza that it itself declared as ‘safe zones’. More than 22,000 had died as a result of relentless bombing since October 7 and over 1800 families have lost multiple family members, while many families do not have any survivors left. Children and women are the worst sufferers accounting for 70 per cent of the total casualties .The second genocidal act perpetrated by Israel, according to her, is infliction of serious mental and bodily harm. In this connection she mentioned that more than 6000 people in Gaza have been injured as of December last, most of them women and children. As regards mental affliction, she mentioned the arrest of men and children who were stripped naked in cold weather and taken in that condition to unknown locations by open trucks. Citing the third case of genocidal acts, Hassim said Israel has deliberately created and imposed conditions on Palestinians in Gaza that cannot sustain life and are aimed at forced displacement. She said thousands of families have been displaced multiple times, with half a million now having no home to return. In northern Gaza, more than one million people were asked to move south at short notice. Even as they sought refuge in safe havens they were bombed indiscriminately on their way, she said. The fourth genocidal act, Hassim said, is Israel’s deliberate attack on hospitals and the heath care system with bombardment and artillery fire that has made life unsustainable in Gaza. Many of the hospitals have been shut down for lack of electricity and forced eviction of medical staff, she mentioned.
Mr Tembeka, another lawyer representing South Africa dealt with the issue of ‘genocidal intent’, usually the most difficult matter to prove in a case of this kind. In this connection, he mentioned that Israeli political leaders, military commanders and persons holding high official positions have systematically and in explicit terms declared their genocidal intent on various occasions before land invasion began. “These statements are then repeated by soldiers on the ground in Gaza, as they engage in the destruction of Palestinians and the physical infrastructures in Gaza,” he said. In this connection he brought to the notice of the court Israeli Prime Minister’s exhortation to ground troops in Gaza on October 28 to go and kill all of Amalek, a reference to Biblical statement where Israelis are called upon to destroy the community, Amalek, that is their enemy.
Israel’s statements: Israel delivered its defence to the Court on Friday, 12 January, a day after South Africa presented its case. Before the formal presentation in the Court, a spokesperson of Israeli Foreign ministry accused South Africa of being the ‘international arm’ of Hamas and termed the case brought against Israel as a ‘blood libel’. He dismissed it as being baseless and unfounded, being spurred by anti-semitism. These are familiar standard response of Israeli authorities whenever someone speaks on behalf of Palestinians. The judges in ICJ are well aware of that one can presume.
The Israeli team in their argument said that the process of resolving the dispute mutually by the two parties (South Africa and Israel) over the issue of genocide had not been exhausted and as such the ICJ had no jurisdiction over the matter. The team’s lawyer, apart from describing the charges brought against Israel as ‘false’ and ‘malevolent’, provided arguments and evidence as required by the Convention to undermine South Africa’s request for ‘provisional’ measures’ which require relatively low evidentiary bar, to halt the war based on a claim for genocidal intent. In this connection Prof Malcom Shaw, one of the Israeli lawyers pointed out that the so called inflammatory pronouncements by Israeli leaders were not in the form of formal policy taken by the cabinet and as such could not be taken seriously. He argued that the strategy used by the Israeli Defence Force (IDF) was dictated by cabinet decisions and IDF has been guided by these decisions since 7 October which require them to restrict collateral damage. Other members of the Israeli defence team pointed out ‘glaring omissions’ in the presentation by South Africa, such as October 7 attack by Hamas which triggered Israel’s war against Hamas and the latter’s reliance on fighting from civilian homes, UN facilities, schools, mosques and hospitals which is responsible for the high number of deaths of civilians. South Africa also misrepresented Israel’s repeated requests to Gazans to evacuate to safe zones as forced displacement and as proof of ‘genocidal intent’, he said. The Israeli team argued more fundamentally that allegations brought by South Africa constitute components that relate more to laws of war rather than to genocide. It was emphasised that there is no ‘plausibility’ to the claim that Israel is engaged in genocide and therefore, the very nature of the complaint is not within the court’s jurisdiction. With regard to provisional order to halt the war, Dr Christopher Staker, another member of the Israeli team, said if such an order is given by the Court it would mean that while the terrorists are allowed to continue attacks, the third party ( South Africa) seeking provisional order can stop a party (Israel) from defending itself.
Comparison: Comparing the presentations by the two sides it appears that South Africa’s arguments are strong on the evidentiary side, while Isreal’s strong point is on interpretation of law. South Africa could bolster its case by opening the argument with the statement that the very act of declaring a full scale war by Israel with state of the art arms and equipments against a lightly armed small group living in an area occupied by it is enough of an evidence that Israel has genocidal intents and is in fact committing genocide since October 7. The argument of ‘right to self-defence’ and waging war cannot hold water when the adversary is within the territorial jurisdiction of the aggrieved party and is a non- state actor. War, as recognised under international law, takes place between two or more states that are juridical bodies. Hamas, by no stretch of imagination or by straining the interpretation of existing legal notions of ‘state’ can be deemed to be a state against which war can be declared by the legally recognised state of Israel, even in self defence unless the state declaring war has the express intent to commit genocide. Moreover, the concept of self-defence should not be misinterpreted as the right to take collective reprisal against the whole community after an act of violence has been committed by a militant group. Defence implies repulsing an attack by hostile elements either through preventive measures for security or meeting the attackers in real time. Punitive actions taken a posterior is calculated revenge and when it is directed against the whole community to each the militants belong it fits into the description of genocide as defined in the Convention. This has been the case in Israel’s war in Gaza, an obvious point deliberately ignored by the Western allies of Israel which has emboldened and encouraged Israel to wage a vicious war for more than 100 days since October 7 that has taken a toll of more than 24,000 and injured above 60,000 women and children. It is understandable that every issue cannot be included within the span of a limited time for presentation in the court but mention of these two points would have strengthened the brief of South Africa.
End note: The ICJ, like most judicial entities, may take a legalistic stand in disputes between parties minimising, even ignoring the body of evidence. If it deems fit and proper to adhere to this timeworn convention of dispensing justice then the verdict on the main component of the genocidal case brought against Israel by South Africa —’the intent to commit genocide’ —may favour the Israelis, taking them off the hook from charges. But a court concerned with human rights might weigh the spirit behind the law more than the letters of law and the verdict might be in favour of South Africa provided no undue political pressure is brought to bear on ICJ judges. Given the way the present world order is functioning that is a big if. So one should keep one’s fingers crossed.
But the decision of ICJ on the main component of the case i.e. whether Israel has committed or has the intent to commit genocide, will not be forthcoming before at least a year from now. With the war in Gaza taking the toll of increasing number of lives, the case for declaring provisional measure of halting the war, as prayed for by South Africa, appears more immediate and compelling. There is a precedence for this positive outcome in a similar case brought against Russia in (2023) where the ICJ called for halting the war in Ukraine as a provisional measure. Though binding on parties, ICJ’s order is not enforceable and because of that limitation the Ukraine war continues. If the Court’s verdict is the same in the present case no different outcome can be expected because Israel will not stop the war anytime before it decides or its close allies ask it to do so. But a moral victory would have been won by South Africa and the Gazans and Palestinians by the mere fact of having the verdict in their favour. That, too, will be an irony because Israel’s sacrosanct image as a paragon of being virtuous in pursuing a sanguinary war in ‘self defence’ would be shattered beyond repair. No less serious will be the implicit charges of complicity against America, Britain and Germany which, as unshakable allies of the rogue state, have already declared that the case of violation of the Genocide Convention by Israel has no merit and is nothing more than a distraction. Since the UN’s top court gave verdict in favour of provisional measure asking Russia to halt military operations in a less serious conflict, it would tarnish the image of the revered body if a similar verdict is not reached and delivered in the present far more serious case.

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